U.S. v. Anderson, 91-50395

• Decision Date: 20 May 1993
• Docket Number: No. 91-50395,91-50395
• Citation: 993 F.2d 1435
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Roy ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1435

993 F.2d 1435

61 USLW 2795

UNITED STATES of America, Plaintiff-Appellee, v. Mark Roy ANDERSON, Defendant-Appellant.

No. 91-50395.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 9, 1992.

Decided May 20, 1993.

Loretta Shartis, Sherman Oaks, CA, for defendant-appellant.

George Cardona, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING, SCHROEDER, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Mark Roy Anderson, who pleaded guilty to two counts of a thirty-count indictment for mail fraud in violation of 18 U.S.C. § 1341, appeals his conviction and sentence on the grounds that the district court coerced Anderson into pleading guilty and impermissibly participated in the plea bargaining process, improperly reserved judgment on Anderson's motion regarding a state grant of immunity until after trial, erred in considering all of the fraudulent activities alleged in the indictment in sentencing Anderson, and ordered restitution in excess of that permitted by law. Because the trial judge improperly influenced the plea negotiation process, we vacate Anderson's conviction.

FACTS AND PROCEDURAL HISTORY

In the mid-1980's, Anderson, acting through certain companies that he controlled, established and promoted a series of limited partnerships for the ostensible purpose of buying and restoring historic buildings. According to the indictment, very little of the $6.8 million raised by Anderson in connection with these projects was actually used to purchase or refurbish the properties in question. Instead, it is alleged, Anderson illicitly withdrew investors' funds from escrow accounts and redistributed the monies according to an elaborate Ponzi scheme to benefit himself and other entities he controlled.

Anderson was indicted for thirty counts of mail fraud on March 6, 1991. On April 10, 1991 he appeared before the district court and entered a plea of not guilty to the charges. We recount the events at the April 10 hearing in some detail because it is at this hearing that Anderson contends he was pressured into changing his plea by the district judge.

After Anderson entered his not guilty plea, the judge set a trial date of April 30, 1991, commenting as he did so that "both counsel have indicated it's going to take six weeks to try. I don't believe it's going to take any six weeks to try. I'm a former accountant and this is a--seems to me a very, very simple case." (Reporter's Transcript ("R.T.") of 4/10/91 Hearing at 4-5.) Anderson's attorney objected to the swift trial date, explaining that he had just picked up the case the previous Monday, had first met with the prosecutor the day before, and that there were numerous boxes of documents to review and witnesses to interview in what he perceived to be a complex case. After the court reiterated its view that it would not be a difficult case for anyone to try, defense counsel stated that in order to represent his client effectively, he would need more time to prepare for trial. The district judge responded as follows:

Well, you had a former attorney in the case and there was an agreed-upon plea bargain or plea agreement in this matter that I understand has been backed away from. And I have no problem with that except to tell you this. I will not accept a plea from this point on in this case unless it is to all counts. So I mean, I'm telling the Government at this point not to make any deals because I will not honor any deals or recommendations that you make in this case.

In the event of a verdict the Court wants complete control over these cases. I don't believe in--in plea negotiations at all. So with regard to this matter, I'm prepared to try it because the maximum trial time on this case, according to our records counsel, is May the 23rd, 1991.

(Id. at 6.)

Anderson's attorney countered that he was of the opinion that his preparation time would be excludable from the speedy trial After defense counsel continued to press for more preparation time, and in deference to the AUSA's trial schedule, the court finally agreed to reschedule the trial for May 14. At this juncture, Anderson, through his counsel, requested a ten-minute break. Following the recess, Anderson's attorney inquired "whether, based on the statements the Court has made already, the Court might still consider entertaining a plea in this matter as late as Friday of this week," noting that the prosecutor had indicated that the deal would remain open until that time. (Id. at 10.) The court agreed to continue the case until Friday, stating,

                clock.   He also pointed out that there was an issue to be resolved before trial of whether the government's evidence was tainted by a grant of immunity to Anderson in connection with a state receivership action in which Anderson had testified.   Without giving its reasons for postponing its ruling, the court reserved the right to decide the immunity issue at the conclusion of the trial
                

I don't want to coerce anything out of the defendant in this particular case, but you must--and I know your schedule's probably busy. You must sit down and explain what the ramifications are.

See, I don't believe in negotiations once it leaves Arraignment Court. I'm not Monty Hall, this is not "Let's Make a Deal."

(Id. at 11.)

Two days later, on April 12, 1991, Anderson appeared before the district court and pleaded guilty to counts nine and twelve pursuant to a plea agreement under which the government agreed to dismiss the remaining counts of the indictment. At the change of plea hearing, the court asked Anderson whether there had been any threats made against him or any member of his family that had compelled him to plead guilty, to which Anderson responded, "No." (R.T. of 4/12/91 Hearing at 9.) Anderson also stated that he was entering his plea on a free and voluntary basis.

The district court sentenced Anderson to consecutive terms of imprisonment of five years on count nine and two years on count twelve, and ordered him to pay restitution in the amount of $6,770,000 to the state-appointed receiver acting on behalf of the investors. This appeal ensued.

DISCUSSION

Anderson asserts that he should be permitted to withdraw his plea of guilty because it was not freely entered and because the court violated Federal Rule of Criminal Procedure 11 by improperly injecting itself into the plea bargaining process.

A. Voluntariness

In order to be valid, a guilty plea must be voluntary and intelligent, and cannot be the result of threats, misrepresentations, or improper promises. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984). The voluntariness of a guilty plea is generally reviewed de novo on appeal after a defendant has made an unsuccessful attempt to withdraw his plea below. See United States v. Zweber, 913 F.2d 705, 710 (9th Cir.1990). In considering the issue of voluntariness, a reviewing court must examine the totality of circumstances surrounding the plea. Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir.1986).

Anderson did not raise the voluntariness of Rule 11 concerns or seek to withdraw his plea in the trial court. Ordinarily we will not review issues not properly presented below. But because "[t]he comments by the district court regarding the plea negotiations are all on the record [and] there is no factual dispute regarding their nature," Anderson's challenge is a question of law, and we may address it. United States v. Bruce, 976 F.2d 552, 555 (9th Cir.1992). We do so with the understanding that a finding of judicial misconduct in connection with a plea proceeding constitutes plain error and entitles a defendant to withdraw his guilty plea even if the error is identified for the first time on appeal. Id. at 554; United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989).

Despite the district court's representation to the contrary, the April 10 hearing in fact bore some resemblance to an episode from Let's Make a Deal. The judge's opening The court's refusal to grant a continuance to Anderson's newly appointed counsel to prepare for what would appear to be at least a moderately complicated trial contributed to the coercive atmosphere. The decision whether to grant a continuance is within the discretion of the trial court, so long as a defendant's due process rights are not violated. United States v. Bogard, 846 F.2d 563, 566 (9th Cir.1988). We have no occasion here to decide whether the district court abused its discretion in denying the continuance or ran afoul of due process. We do note, however, that even though the judge, in a not overly generous concession, ultimately did push the trial date back two weeks, his unwillingness to grant more time in the face of numerous and persistent well-founded requests on the part of Anderson's attorney might well have been interpreted by Anderson as a sign that his interests would be jeopardized if he chose to go to trial. ¹

                pronouncement that he would not after that date accept a plea to fewer than all thirty counts of the indictment and admonishment that the government was

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